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TMI Blog1996 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Tribunal in miscellaneous application recalling the earlier order, is legally correct? 3. Whether, in view of the fact that the Bench which heard the matter giving rise to the miscellaneous application is different from the Bench disposing of the application recalling the order of the Tribunal for fresh hearing, the order of the Tribunal is legally correct in terms of r. 34A(3) of the IT (Appellate Tribunal) Rules, 1963?" 2. The facts of this case, in short, are that the assessee was assessed as an individual and in the assessment, the AO disallowed the payment of Rs. 9,87,295 by invoking the provisions of s. 40A of the IT Act, 1961. The assessee, being aggrieved by the order of assessment, took the matter in appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties who were new to the assessee and those payments should not be considered to be disallowed under s. 40A(3), if r. 6DD(j) was properly considered, and as the Tribunal felt that the matter was not considered properly and that prima facie the assessee had made out a case that these payments could not have been considered to be disallowed under s. 40A(3) of the said Act if r. 6DD(j) of the said Act was properly considered, and, accordingly, the Tribunal recalled the earlier order and to that extent, for a fresh hearing. Against this order, dt. 12th Oct., 1993, an application was moved for reference under s. 256(1) of the Act, which was rejected. It was held that there was no referable question of law that arose out of the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (as his Lordship then was), in the case of Shew Paper Exchange vs. ITO [1974] 93 ITR 186 (Cal) : TC 8R.1312. It is not in dispute that the Tribunal or a statutory body has no inherent power of review, the power of review must be expressly conferred by the statute. Review of an order means re-examination or to give a second view of the matter for the purpose of alteration of reversal of the view already taken after changing the earlier opinion or view. The Supreme Court, in the case of H.C. Suman vs. Rehabilitation Ministry Employees Co-operative House Building Society Ltd. AIR 1991 SC 2160, has held that once a quasi-judicial order becomes final, it cannot be reviewed by the authority passing the same unless such power is provided fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court itself. Sec. 254(2) of the IT Act expressly confers power upon the Tribunal to correct any mistake apparent from the record and power to amend any order passed under sub-s. (1) of s. 254. Sec. 154 of the IT Act also provides power for rectification of mistake apparent from the record. In the case of Kil Kotagiri Tea Coffee Estate Co. Ltd. vs. ITAT [1989] 75 CTR (Ker) 115 : [1988] 174 ITR 579 (Ker), the Kerala High Court held that s. 254(2) and s. 154 enable the concerned authorities to rectify any "mistake apparent from the record". The said expression has a wider content than the expression "error apparent on the face of the record" occurring in O. 47, r. 1 of the CPC. The restrictions on the power of review under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any scope for change of the opinion or view already taken. It was a case where the Tribunal found that the Tribunal had not considered the effect of r. 6DD(j) of the IT Rules, which is a statutory rule and the circular of the Department in the matter of application of the provisions of s. 40A(3) of the Act. It is also not a case where that power of rectification is sought to be made on the ground of subsequent amendment of the provisions of law with retrospective effect, but to correct a mistake or error in the order which in law may be required to be rectified. It is a case where the Tribunal sought to rectify the order so as to bring it in conformity with the law and the circular of the Department, which was not considered properly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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